1 | Representative Simmons offered the following: |
2 |
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3 | Amendment (with title amendment) |
4 | Remove the entire body and insert: |
5 | Section 1. Subsection (3) of section 394.455, Florida |
6 | Statutes, is amended, and subsections (31) and (32) are added to |
7 | that section, to read: |
8 | 394.455 Definitions.--As used in this part, unless the |
9 | context clearly requires otherwise, the term: |
10 | (3) "Clinical record" means all parts of the record |
11 | required to be maintained and includes all medical records, |
12 | progress notes, charts, and admission and discharge data, and |
13 | all other information recorded by a facility which pertains to |
14 | the patient's hospitalization or and treatment. |
15 | (31) "Service provider" means any public or private |
16 | receiving facility, an entity under contract with the Department |
17 | of Children and Family Services to provide mental health |
18 | services, a clinical psychologist, a clinical social worker, a |
19 | physician, psychiatric nurse as defined in subsection (23), or a |
20 | community mental health center or clinic as defined in this |
21 | part. |
22 | (32) "Involuntary examination" means an examination |
23 | performed under s. 394.463 to determine if an individual |
24 | qualifies for involuntary inpatient treatment under s. |
25 | 394.467(1) or involuntary outpatient treatment under s. |
26 | 394.4655(1). |
27 | (33) "Involuntary placement" means either involuntary |
28 | outpatient treatment pursuant to s. 394.4655 or involuntary |
29 | inpatient treatment pursuant to s. 394.467. |
30 | Section 2. Subsections (1) and (7) of section 394.4598, |
31 | Florida Statutes, are amended to read: |
32 | 394.4598 Guardian advocate.-- |
33 | (1) The administrator may petition the court for the |
34 | appointment of a guardian advocate based upon the opinion of a |
35 | psychiatrist that the patient is incompetent to consent to |
36 | treatment. If the court finds that a patient is incompetent to |
37 | consent to treatment and has not been adjudicated incapacitated |
38 | and a guardian with the authority to consent to mental health |
39 | treatment appointed, it shall appoint a guardian advocate. The |
40 | patient has the right to have an attorney represent him or her |
41 | at the hearing. If the person is indigent, the court shall |
42 | appoint the office of the public defender to represent him or |
43 | her at the hearing. The patient has the right to testify, cross- |
44 | examine witnesses, and present witnesses. The proceeding shall |
45 | be recorded either electronically or stenographically, and |
46 | testimony shall be provided under oath. One of the professionals |
47 | authorized to give an opinion in support of a petition for |
48 | involuntary placement, as described in s. 394.4655 or s. |
49 | 394.467(2), must testify. A guardian advocate must meet the |
50 | qualifications of a guardian contained in part IV of chapter |
51 | 744, except that a professional referred to in this part, an |
52 | employee of the facility providing direct services to the |
53 | patient under this part, a departmental employee, a facility |
54 | administrator, or member of the Florida local advocacy council |
55 | shall not be appointed. A person who is appointed as a guardian |
56 | advocate must agree to the appointment. |
57 | (7) The guardian advocate shall be discharged when the |
58 | patient is discharged from an order for involuntary outpatient |
59 | placement or involuntary inpatient placement a receiving or |
60 | treatment facility to the community or when the patient is |
61 | transferred from involuntary to voluntary status. The court or a |
62 | hearing officer shall consider the competence of the patient |
63 | pursuant to subsection (1) and may consider an involuntarily |
64 | placed patient's competence to consent to treatment at any |
65 | hearing. Upon sufficient evidence, the court may restore, or the |
66 | hearing officer may recommend that the court restore, the |
67 | patient's competence. A copy of the order restoring competence |
68 | or the certificate of discharge containing the restoration of |
69 | competence shall be provided to the patient and the guardian |
70 | advocate. |
71 | Section 3. Subsection (3) of section 394.4615, Florida |
72 | Statutes, is amended to read: |
73 | 394.4615 Clinical records; confidentiality.-- |
74 | (3) Information from the clinical record may be released |
75 | in the following circumstances when: |
76 | (a) When a patient has declared an intention to harm other |
77 | persons. When such declaration has been made, the administrator |
78 | may authorize the release of sufficient information to provide |
79 | adequate warning to the person threatened with harm by the |
80 | patient. |
81 | (b) When the administrator of the facility or secretary of |
82 | the department deems release to a qualified researcher as |
83 | defined in administrative rule, an aftercare treatment provider, |
84 | or an employee or agent of the department is necessary for |
85 | treatment of the patient, maintenance of adequate records, |
86 | compilation of treatment data, aftercare planning, or evaluation |
87 | of programs. |
88 |
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89 | For the purpose of determining whether a person meets the |
90 | criteria for involuntary outpatient placement or for preparing |
91 | the proposed treatment plan pursuant to s. 394.4655, the |
92 | clinical record may be released to the state attorney, the |
93 | public defender or the patient's private legal counsel, the |
94 | court, and to the appropriate mental health professionals, |
95 | including the service provider identified in s. |
96 | 394.4655(6)(b)2., in accordance with state and federal law. |
97 | Section 4. Subsection (1) and paragraphs (e), (g), and (i) |
98 | of subsection (2) of section 394.463, Florida Statutes, are |
99 | amended to read: |
100 | 394.463 Involuntary examination.-- |
101 | (1) CRITERIA.--A person may be taken to a receiving |
102 | facility for involuntary examination if there is reason to |
103 | believe that the person has a mental illness he or she is |
104 | mentally ill and because of his or her mental illness: |
105 | (a)1. The person has refused voluntary examination after |
106 | conscientious explanation and disclosure of the purpose of the |
107 | examination; or |
108 | (b)2. The person is unable to determine for himself or |
109 | herself whether examination is necessary; and |
110 | (c)(b) Based on the person's current reported or observed |
111 | behavior, considering any mental health history, there is a |
112 | substantial likelihood that without care or treatment: |
113 | 1. Without care or treatment, The person will is likely to |
114 | suffer from neglect or refuse to care for himself or herself; |
115 | such neglect or refusal will pose poses a real and present |
116 | threat of substantial harm to his or her well-being; and it is |
117 | not apparent that such harm may be avoided through the help of |
118 | willing family members or friends or the provision of other |
119 | services; or |
120 | 2. There is a substantial likelihood that without care or |
121 | treatment The person will cause serious bodily harm to himself |
122 | or herself or others in the near future, as evidenced by recent |
123 | behavior. |
124 | (2) INVOLUNTARY EXAMINATION.-- |
125 | (e) The Agency for Health Care Administration shall |
126 | receive and maintain the copies of ex parte orders, involuntary |
127 | outpatient placement orders issued pursuant to s. 394.4655, |
128 | involuntary inpatient placement orders issued pursuant to s. |
129 | 394.467, professional certificates, and law enforcement |
130 | officers' reports. These documents shall be considered part of |
131 | the clinical record, governed by the provisions of s. 394.4615. |
132 | The agency shall prepare annual reports analyzing the data |
133 | obtained from these documents, without information identifying |
134 | patients, and shall provide copies of reports to the department, |
135 | the President of the Senate, the Speaker of the House of |
136 | Representatives, and the minority leaders of the Senate and the |
137 | House of Representatives. |
138 | (g) A person for whom an involuntary examination has been |
139 | initiated who is being evaluated or treated at a hospital for an |
140 | emergency medical condition specified in s. 395.002 must be |
141 | examined by a receiving facility within 72 hours. The 72-hour |
142 | period begins when the patient arrives at the hospital and |
143 | ceases when the attending physician documents that the patient |
144 | has an emergency medical condition. If the patient is examined |
145 | at a hospital providing emergency medical services by a |
146 | professional qualified to perform an involuntary examination and |
147 | is found as a result of that examination not to meet the |
148 | criteria for involuntary outpatient placement pursuant to s. |
149 | 394.4655(1) or involuntary inpatient placement pursuant to s. |
150 | 394.467(1), the patient may be offered voluntary placement, if |
151 | appropriate, or released directly from the hospital providing |
152 | emergency medical services. The finding by the professional |
153 | that the patient has been examined and does not meet the |
154 | criteria for involuntary inpatient placement or involuntary |
155 | outpatient placement must be entered into the patient's clinical |
156 | record. Nothing in this paragraph is intended to prevent a |
157 | hospital providing emergency medical services from appropriately |
158 | transferring a patient to another hospital prior to |
159 | stabilization, provided the requirements of s. 395.1041(3)(c) |
160 | have been met. |
161 | (i) Within the 72-hour examination period or, if the 72 |
162 | hours ends on a weekend or holiday, no later than the next |
163 | working day thereafter, one of the following actions must be |
164 | taken, based on the individual needs of the patient: |
165 | 1. The patient shall be released, unless he or she is |
166 | charged with a crime, in which case the patient shall be |
167 | returned to the custody of a law enforcement officer; |
168 | 2. The patient shall be released, subject to the |
169 | provisions of subparagraph 1., for voluntary outpatient |
170 | treatment; |
171 | 3. The patient, unless he or she is charged with a crime, |
172 | shall be asked to give express and informed consent to placement |
173 | as a voluntary patient, and, if such consent is given, the |
174 | patient shall be admitted as a voluntary patient; or |
175 | 4. If treatment is deemed necessary and the patient has |
176 | failed to consent to voluntary inpatient or outpatient |
177 | treatment, a petition for involuntary placement must be filed in |
178 | the circuit court. The petition must seek involuntary placement |
179 | of the patient in the least restrictive treatment consistent |
180 | with the optimum improvement of the patient's condition. A |
181 | petition for involuntary outpatient placement shall be filed by |
182 | one of the petitioners specified in s. 394.4655(3)(a). A |
183 | petition for involuntary inpatient placement shall be filed by |
184 | the facility administrator. A petition for involuntary placement |
185 | shall be filed in the appropriate court by the facility |
186 | administrator when treatment is deemed necessary; in which case, |
187 | the least restrictive treatment consistent with the optimum |
188 | improvement of the patient's condition shall be made available. |
189 | Section 5. Section 394.4655, Florida Statutes, is created |
190 | to read: |
191 | 394.4655 Involuntary outpatient placement.-- |
192 | (1) CRITERIA FOR INVOLUNTARY OUTPATIENT PLACEMENT.--A |
193 | person may be ordered to involuntary outpatient placement upon a |
194 | finding of the court that by clear and convincing evidence: |
195 | (a) The person is 18 years of age or older; |
196 | (b) The person has a mental illness; |
197 | (c) The person is unlikely to survive safely in the |
198 | community without supervision, based on a clinical |
199 | determination; |
200 | (d) The person has a history of lack of compliance with |
201 | treatment for mental illness; |
202 | (e) The person has: |
203 | 1. At least twice within the immediately preceding 36 |
204 | months been involuntarily admitted to a receiving or treatment |
205 | facility as defined in s. 394.455, or has received mental health |
206 | services in a forensic or correctional facility. The 36-month |
207 | period does not include any period during which the person was |
208 | admitted or incarcerated; or |
209 | 2. Engaged in one or more acts of serious violent behavior |
210 | toward self or others, or attempts at serious bodily harm to |
211 | himself or herself or others, within the preceding 36 months; |
212 | (f) The person is, as a result of his or her mental |
213 | illness, unlikely to voluntarily participate in the recommended |
214 | treatment pursuant to the treatment plan; |
215 | (g) In view of the person's treatment history and current |
216 | behavior, the person is in need of involuntary outpatient |
217 | placement in order to prevent a relapse or deterioration that |
218 | would be likely to result in serious bodily harm to himself or |
219 | herself or others, or a substantial harm to his or her well- |
220 | being as set forth in s. 394.463(1); |
221 | (h) It is likely that the person will benefit from |
222 | involuntary outpatient placement; and |
223 | (i) All available less restrictive alternatives that would |
224 | offer an opportunity for improvement of his or her condition |
225 | have been judged to be inappropriate or unavailable. |
226 | (2) INVOLUNTARY OUTPATIENT PLACEMENT.-- |
227 | (a) From a receiving facility.--A patient may be retained |
228 | by a receiving facility upon the recommendation of the |
229 | administrator of a receiving facility where the patient has been |
230 | examined and after adherence to the notice of hearing procedures |
231 | provided in s. 394.4599. The recommendation must be supported by |
232 | the opinion of a psychiatrist and the second opinion of a |
233 | clinical psychologist or another psychiatrist, both of whom have |
234 | personally examined the patient within the preceding 72 hours, |
235 | that the criteria for involuntary outpatient placement are met. |
236 | However, in a county having a population of fewer than 50,000, |
237 | if the administrator certifies that no psychiatrist or clinical |
238 | psychologist is available to provide the second opinion, the |
239 | second opinion may be provided by a licensed physician who has |
240 | postgraduate training and experience in diagnosis and treatment |
241 | of mental and nervous disorders or by a nurse providing |
242 | psychiatric services consistent with s. 394.455(23). Such a |
243 | recommendation must be entered on an involuntary outpatient |
244 | placement certificate, which certificate must authorize the |
245 | receiving facility to retain the patient pending completion of a |
246 | hearing. If the patient has been stabilized and no longer meets |
247 | the criteria for involuntary examination pursuant to s. |
248 | 394.463(1), the patient must be released from the receiving |
249 | facility while awaiting the hearing for involuntary outpatient |
250 | placement. |
251 | (b) Voluntary examination for outpatient placement.--If |
252 | such an arrangement can be made, a patient may choose to be |
253 | examined on an outpatient basis for an involuntary outpatient |
254 | placement certificate. The certificate must be supported by the |
255 | opinion of a psychiatrist and the second opinion of a clinical |
256 | psychologist or another psychiatrist, both of whom have |
257 | personally examined the patient within the preceding 7 calendar |
258 | days, that the criteria for involuntary outpatient placement are |
259 | met. However, in a county having a population of fewer than |
260 | 50,000, if the psychiatrist certifies that no psychiatrist or |
261 | clinical psychologist is available to provide the second |
262 | opinion, the second opinion may be provided by a licensed |
263 | physician who has postgraduate training and experience in |
264 | diagnosis and treatment of mental and nervous disorders or by a |
265 | psychiatric nurse as defined s. 394.455(23). |
266 | (c) From a treatment facility.--If a patient in |
267 | involuntary inpatient placement meets the criteria for |
268 | involuntary outpatient placement, the administrator of the |
269 | treatment facility may, before the expiration of the period |
270 | during which the treatment facility is authorized to retain the |
271 | patient, recommend involuntary outpatient placement. The |
272 | recommendation must be supported by the opinion of a |
273 | psychiatrist and the second opinion of a clinical psychologist |
274 | or another psychiatrist, both of whom have personally examined |
275 | the patient within the preceding 72 hours, that the criteria for |
276 | involuntary outpatient placement are met. However, in a county |
277 | having a population of fewer than 50,000, if the administrator |
278 | certifies that no psychiatrist or clinical psychologist is |
279 | available to provide the second opinion, the second opinion may |
280 | be provided by a licensed physician who has postgraduate |
281 | training and experience in diagnosis and treatment of mental and |
282 | nervous disorders or by a psychiatric nurse as defined in s. |
283 | 394.455(23). Such a recommendation must be entered on an |
284 | involuntary outpatient placement certificate. |
285 | (3) PETITION FOR INVOLUNTARY OUTPATIENT PLACEMENT.-- |
286 | (a) A petition for involuntary outpatient placement may be |
287 | filed by: |
288 | 1. The administrator of a receiving facility pursuant to |
289 | paragraph(2)(a); |
290 | 2. One of the examining professionals for persons examined |
291 | on a voluntary outpatient basis pursuant to paragraph (2)(b). |
292 | Upon filing the petition, the examining professional shall |
293 | provide a copy of the petition to the administrator of the |
294 | receiving facility or designated department representative that |
295 | will identify the service provider for the involuntary |
296 | outpatient placement unless the person is otherwise |
297 | participating in outpatient psychiatric treatment and is not in |
298 | need of public financing for that treatment, in which case the |
299 | individual, if eligible, may be involuntarily committed to the |
300 | existing psychiatric treatment relationship; or |
301 | 3. The administrator of a treatment facility pursuant to |
302 | paragraph(2)(c). Upon filing the petition, the administrator |
303 | shall provide a copy of the petition to the administrator of the |
304 | receiving facility or designated department representative that |
305 | will identify the service provider for the involuntary |
306 | outpatient placement unless the person is otherwise |
307 | participating in outpatient psychiatric treatment and is not in |
308 | need of public financing for that treatment, in which case the |
309 | individual, if eligible, may be involuntarily committed to the |
310 | existing psychiatric treatment relationship. |
311 | (b) Each required criterion for involuntary outpatient |
312 | placement must be alleged and substantiated in the petition for |
313 | involuntary outpatient placement. A copy of the certificate |
314 | recommending involuntary outpatient placement completed by a |
315 | qualified professional specified in subsection (2) must be |
316 | attached to the petition. A copy of the treatment plan specified |
317 | in subparagraph (6)(b)2. must be attached to the petition. At |
318 | the time the petition is filed, the service provider shall |
319 | certify that the services in the proposed treatment plan are |
320 | available. If the necessary services are not available in the |
321 | patient's local community to respond to the person's individual |
322 | needs, the petition may not be filed. |
323 | (c) The petition for involuntary outpatient placement must |
324 | be filed in the county where the patient is located. When the |
325 | petition has been filed, the clerk of the court shall provide |
326 | copies of the petition and the proposed treatment plan to the |
327 | department, the patient, the patient's guardian or |
328 | representative, and the state attorney and public defender of |
329 | the judicial circuit in which the patient is located. A fee may |
330 | not be charged for filing a petition under this subsection. |
331 | (4) APPOINTMENT OF COUNSEL.--Within 1 court working day |
332 | after the filing of a petition for involuntary outpatient |
333 | placement, the court shall appoint the public defender to |
334 | represent the person who is the subject of the petition, unless |
335 | the person is otherwise represented by counsel. The clerk of the |
336 | court shall immediately notify the public defender of the |
337 | appointment. The public defender shall represent the person |
338 | until the petition is dismissed, the court order expires, or the |
339 | patient is discharged from involuntary outpatient placement. An |
340 | attorney who represents the patient shall have access to the |
341 | patient, witnesses, and records relevant to the presentation of |
342 | the patient's case and shall represent the interests of the |
343 | patient, regardless of the source of payment to the attorney. |
344 | (5) CONTINUANCE OF HEARING.--The patient is entitled, with |
345 | the concurrence of the patient's counsel, to at least one |
346 | continuance of the hearing. The continuance shall be for a |
347 | period of up to 4 weeks. |
348 | (6) HEARING ON INVOLUNTARY OUTPATIENT PLACEMENT.-- |
349 | (a)1. The court shall hold the hearing on involuntary |
350 | outpatient placement within 5 days, unless a continuance is |
351 | granted. The hearing shall be held in the county where the |
352 | patient is located, shall be as convenient to the patient as is |
353 | consistent with orderly procedure, and shall be conducted in |
354 | physical settings not likely to be injurious to the patient's |
355 | condition. If the court finds that the patient's attendance at |
356 | the hearing is not consistent with the best interests of the |
357 | patient and if the patient's counsel does not object, the court |
358 | may waive the presence of the patient from all or any portion of |
359 | the hearing. The state attorney for the circuit in which the |
360 | patient is located shall represent the state, rather than the |
361 | petitioner, as the real party in interest in the proceeding. |
362 | 2. The court may appoint a master to preside at the |
363 | hearing. One of the professionals who executed the involuntary |
364 | outpatient placement certificate shall be a witness. The patient |
365 | and the patient's guardian or representative shall be informed |
366 | by the court of the right to an independent expert examination. |
367 | If the patient cannot afford such an examination, the court |
368 | shall provide for one. The independent expert's report shall be |
369 | confidential and not discoverable, unless the expert is to be |
370 | called as a witness for the patient at the hearing. The court |
371 | shall allow testimony from individuals, including family |
372 | members, deemed by the court to be relevant under state law, |
373 | regarding the person's prior history and how that prior history |
374 | relates to the person's current condition. The testimony in the |
375 | hearing must be given under oath, and the proceedings must be |
376 | recorded. The patient may refuse to testify at the hearing. |
377 | (b)1. If the court concludes that the patient meets the |
378 | criteria for involuntary outpatient placement pursuant to |
379 | subsection (1), the court shall issue an order for involuntary |
380 | outpatient placement. The court order shall be for a period of |
381 | up to 6 months. The service provider shall discharge a patient |
382 | from involuntary outpatient treatment any time the patient no |
383 | longer meets the criteria for involuntary placement. |
384 | 2. The administrator of a receiving facility or a |
385 | designated department representative shall identify the service |
386 | provider that will have primary responsibility for service |
387 | provision under the order. The service provider shall prepare a |
388 | written proposed treatment plan and submit it before the hearing |
389 | for the court's consideration for inclusion in the involuntary |
390 | outpatient placement order. The service provider shall also |
391 | provide a copy of the proposed treatment plan to the petitioner. |
392 | The treatment plan must specify the nature and extent of the |
393 | patient's mental illness. The treatment plan may include |
394 | provisions for case management, intensive case management, or |
395 | assertive community treatment. The treatment plan may also |
396 | require that the patient make use of a service provider to |
397 | supply any or all of the following categories of services to the |
398 | individual: medication; periodic urinalysis to determine |
399 | compliance with treatment; individual or group therapy; day or |
400 | partial-day programming activities; educational and vocational |
401 | training or activities; alcohol or substance abuse treatment and |
402 | counseling and periodic tests for the presence of alcohol or |
403 | illegal drugs for persons with a history of alcohol or substance |
404 | abuse; supervision of living arrangements; and any other |
405 | services prescribed to treat the person's mental illness and to |
406 | assist the person in living and functioning in the community or |
407 | to attempt to prevent a relapse or deterioration. Service |
408 | providers may select and provide supervision to other |
409 | individuals, not enumerated in this sub-subparagraph, to |
410 | implement specific aspects of the treatment plan, such as |
411 | medication monitoring. The services in the treatment plan must |
412 | be deemed to be clinically appropriate by a physician, clinical |
413 | psychologist, psychiatric nurse as defined in s. 394.455(23), or |
414 | clinical social worker who consults with, or is employed or |
415 | contracted by, the service provider. The service provider must |
416 | certify to the court in the proposed treatment plan whether |
417 | sufficient services for improvement and stabilization are |
418 | currently available and whether the service provider agrees to |
419 | provide those services. If the service provider certifies that |
420 | the services in the proposed treatment plan are not available, |
421 | the petitioner shall withdraw the petition. The court may not |
422 | order the department or the service provider to provide services |
423 | if the program or service is not available in the patient's |
424 | local community, if there is no space available in the program |
425 | or service for the patient, or if funding is not available for |
426 | the program or service. A copy of the order must be sent to the |
427 | Agency for Health Care Administration by the service provider |
428 | within 1 working day after it is received from the court. After |
429 | the placement order is issued, the service provider and the |
430 | patient may modify provisions of the treatment plan. For any |
431 | material modification of the treatment plan to which the patient |
432 | or the patient's guardian advocate, if appointed, does agree, |
433 | the service provider shall send notice of the modification to |
434 | the court. Any material modifications of the treatment plan |
435 | which are contested by the patient or the patient's guardian |
436 | advocate, if appointed, shall be in writing and prepared by the |
437 | service provider or administrator for approval by the court. |
438 | 3. If, in the clinical judgment of a physician, the |
439 | patient has failed or has refused to comply with the treatment |
440 | ordered by the court, and, in the clinical judgment of the |
441 | physician or clinical psychologist with a Ph.D., Psy.D., or |
442 | Ed.D., efforts were made to solicit compliance and the patient |
443 | may meet the criteria for involuntary examination, a person may |
444 | be brought to a receiving facility pursuant to s. 394.463. If, |
445 | after examination, the patient does not meet the criteria for |
446 | involuntary inpatient placement pursuant to s. 394.467, the |
447 | patient must be discharged from the receiving facility. The |
448 | service provider must determine whether modifications should be |
449 | made to the existing treatment plan and must attempt to continue |
450 | to engage the patient in treatment. For any material |
451 | modification of the treatment plan to which the patient or the |
452 | patient's guardian advocate, if appointed, does agree, the |
453 | service provider shall send notice of the modification to the |
454 | court. Any material modifications of the treatment plan which |
455 | are contested by the patient or the patient's guardian advocate, |
456 | if appointed, must be approved by the court. |
457 | (c) If, at any time before the conclusion of the initial |
458 | hearing on involuntary outpatient placement, it appears to the |
459 | court that the person does not meet the criteria for involuntary |
460 | outpatient placement under this section but, instead, meets the |
461 | criteria for involuntary inpatient placement, the court may |
462 | order the person admitted for involuntary inpatient examination |
463 | under s. 394.463. If the person instead meets the criteria for |
464 | involuntary assessment, protective custody, or involuntary |
465 | admission pursuant to s. 397.675, the court may order the person |
466 | to be admitted for involuntary assessment for a period of 5 days |
467 | pursuant to s. 397.6811. Thereafter, all proceedings shall be |
468 | governed by chapter 397. |
469 | (d) At the hearing on involuntary outpatient placement, |
470 | the court shall consider testimony and evidence regarding the |
471 | patient's competence to consent to treatment. If the court finds |
472 | that the patient is incompetent to consent to treatment, it |
473 | shall appoint a guardian advocate as provided in s. 394.4598. |
474 | The guardian advocate shall be appointed or discharged in |
475 | accordance with s. 394.4598. |
476 | (e) The administrator of the receiving facility or the |
477 | designated department representative shall provide a copy of the |
478 | court order and adequate documentation of a patient's mental |
479 | illness to the service provider for involuntary outpatient |
480 | placement. Such documentation must include any advance |
481 | directives made by the patient, a psychiatric evaluation of the |
482 | patient, and any evaluations of the patient performed by a |
483 | clinical psychologist or a clinical social worker. |
484 | (7) PROCEDURE FOR CONTINUED INVOLUNTARY OUTPATIENT |
485 | PLACEMENT.-- |
486 | (a) If the person continues to meet the criteria for |
487 | involuntary outpatient placement, the service provider shall, |
488 | before the expiration of the period during which the treatment |
489 | is ordered for the person, file in the circuit court a continued |
490 | involuntary outpatient placement certificate which shall be |
491 | accompanied by a statement from the person's physician or |
492 | clinical psychologist justifying the request, a brief |
493 | description of the patient's treatment during the time he or she |
494 | was involuntarily placed, and an individualized plan of |
495 | continued treatment. |
496 | (b) Within 1 court working day after the filing of a |
497 | petition for continued involuntary outpatient placement, the |
498 | court shall appoint the public defender to represent the person |
499 | who is the subject of the petition, unless the person is |
500 | otherwise represented by counsel. The clerk of the court shall |
501 | immediately notify the public defender of such appointment. The |
502 | public defender shall represent the person until the petition is |
503 | dismissed or the court order expires or the patient is |
504 | discharged from involuntary outpatient placement. Any attorney |
505 | representing the patient shall have access to the patient, |
506 | witnesses, and records relevant to the presentation of the |
507 | patient's case and shall represent the interests of the patient, |
508 | regardless of the source of payment to the attorney. |
509 | (c) Hearings on petitions for continued involuntary |
510 | outpatient placement shall be before the circuit court. The |
511 | court may appoint a master to preside at the hearing. The |
512 | procedures for obtaining an order pursuant to this paragraph |
513 | shall be in accordance with subsection (6), except that the time |
514 | period included in paragraph (1)(e) is not applicable in |
515 | determining the appropriateness of additional periods of |
516 | involuntary outpatient placement. |
517 | (d) Notice of the hearing shall be provided as set forth |
518 | in s. 394.4599. The patient and the patient's attorney may agree |
519 | to a period of continued outpatient placement without a court |
520 | hearing. |
521 | (e) The same procedure shall be repeated before the |
522 | expiration of each additional period the patient is placed in |
523 | treatment. |
524 | (f) If the patient has previously been found incompetent |
525 | to consent to treatment, the court shall consider testimony and |
526 | evidence regarding the patient's competence. Section 394.4598 |
527 | governs the discharge of the guardian advocate if the patient's |
528 | competency to consent to treatment has been restored. |
529 | Section 6. Section 394.467, Florida Statutes, is amended |
530 | to read: |
531 | 394.467 Involuntary inpatient placement.-- |
532 | (1) CRITERIA.--A person may be involuntarily placed in |
533 | involuntary inpatient placement for treatment upon a finding of |
534 | the court by clear and convincing evidence that: |
535 | (a) He or she is mentally ill and because of his or her |
536 | mental illness: |
537 | 1.a. He or she has refused voluntary placement for |
538 | treatment after sufficient and conscientious explanation and |
539 | disclosure of the purpose of placement for treatment; or |
540 | b. He or she is unable to determine for himself or herself |
541 | whether placement is necessary; and |
542 | 2.a. He or she is manifestly incapable of surviving alone |
543 | or with the help of willing and responsible family or friends, |
544 | including available alternative services, and, without |
545 | treatment, is likely to suffer from neglect or refuse to care |
546 | for himself or herself, and such neglect or refusal poses a real |
547 | and present threat of substantial harm to his or her well-being; |
548 | or |
549 | b. There is substantial likelihood that in the near future |
550 | he or she will inflict serious bodily harm on himself or herself |
551 | or another person, as evidenced by recent behavior causing, |
552 | attempting, or threatening such harm; and |
553 | (b) All available less restrictive treatment alternatives |
554 | which would offer an opportunity for improvement of his or her |
555 | condition have been judged to be inappropriate. |
556 | (2) ADMISSION TO A TREATMENT FACILITY.--A patient may be |
557 | retained by a receiving facility or involuntarily placed in a |
558 | treatment facility upon the recommendation of the administrator |
559 | of a receiving facility where the patient has been examined and |
560 | after adherence to the notice and hearing procedures provided in |
561 | s. 394.4599. The recommendation must be supported by the opinion |
562 | of a psychiatrist or a clinical psychologist with a Ph.D., |
563 | Psy.D., or Ed.D. and the second opinion of a clinical |
564 | psychologist or another psychiatrist, both of whom have |
565 | personally examined the patient within the preceding 72 hours, |
566 | that the criteria for involuntary inpatient placement are met. |
567 | However, in counties of less than 50,000 population, if the |
568 | administrator certifies that no psychiatrist or clinical |
569 | psychologist is available to provide the second opinion, such |
570 | second opinion may be provided by a licensed physician with |
571 | postgraduate training and experience in diagnosis and treatment |
572 | of mental and nervous disorders or by a psychiatric nurse as |
573 | defined in s. 394.455(23). Such recommendation shall be entered |
574 | on an involuntary inpatient placement certificate, which |
575 | certificate shall authorize the receiving facility to retain the |
576 | patient pending transfer to a treatment facility or completion |
577 | of a hearing. |
578 | (3) PETITION FOR INVOLUNTARY INPATIENT PLACEMENT.--The |
579 | administrator of the facility shall file a petition for |
580 | involuntary inpatient placement in the court in the county where |
581 | the patient is located. Upon filing, the clerk of the court |
582 | shall provide copies to the department, the patient, the |
583 | patient's guardian or representative, and the state attorney and |
584 | public defender of the judicial circuit in which the patient is |
585 | located. No fee shall be charged for the filing of a petition |
586 | under this subsection. |
587 | (4) APPOINTMENT OF COUNSEL.--Within 1 court working day |
588 | after the filing of a petition for involuntary inpatient |
589 | placement, the court shall appoint the public defender to |
590 | represent the person who is the subject of the petition, unless |
591 | the person is otherwise represented by counsel. The clerk of |
592 | the court shall immediately notify the public defender of such |
593 | appointment. Any attorney representing the patient shall have |
594 | access to the patient, witnesses, and records relevant to the |
595 | presentation of the patient's case and shall represent the |
596 | interests of the patient, regardless of the source of payment to |
597 | the attorney. |
598 | (5) CONTINUANCE OF HEARING.--The patient is entitled, with |
599 | the concurrence of the patient's counsel, to at least one |
600 | continuance of the hearing. The continuance shall be for a |
601 | period of up to 4 weeks. |
602 | (6) HEARING ON INVOLUNTARY INPATIENT PLACEMENT.-- |
603 | (a)1. The court shall hold the hearing on involuntary |
604 | inpatient placement within 5 days, unless a continuance is |
605 | granted. The hearing shall be held in the county where the |
606 | patient is located and shall be as convenient to the patient as |
607 | may be consistent with orderly procedure and shall be conducted |
608 | in physical settings not likely to be injurious to the patient's |
609 | condition. If the court finds that the patient's attendance at |
610 | the hearing is not consistent with the best interests of the |
611 | patient, and the patient's counsel does not object, the court |
612 | may waive the presence of the patient from all or any portion of |
613 | the hearing. The state attorney for the circuit in which the |
614 | patient is located shall represent the state, rather than the |
615 | petitioning facility administrator, as the real party in |
616 | interest in the proceeding. |
617 | 2. The court may appoint a master to preside at the |
618 | hearing. One of the professionals who executed the involuntary |
619 | inpatient placement certificate shall be a witness. The patient |
620 | and the patient's guardian or representative shall be informed |
621 | by the court of the right to an independent expert examination. |
622 | If the patient cannot afford such an examination, the court |
623 | shall provide for one. The independent expert's report shall be |
624 | confidential and not discoverable, unless the expert is to be |
625 | called as a witness for the patient at the hearing. The |
626 | testimony in the hearing must be given under oath, and the |
627 | proceedings must be recorded. The patient may refuse to testify |
628 | at the hearing. |
629 | (b) If the court concludes that the patient meets the |
630 | criteria for involuntary inpatient placement, it shall order |
631 | that the patient be transferred to a treatment facility or, if |
632 | the patient is at a treatment facility, that the patient be |
633 | retained there or be treated at any other appropriate receiving |
634 | or treatment facility, or that the patient receive services from |
635 | a receiving or treatment facility, on an involuntary basis, for |
636 | a period of up to 6 months. The order shall specify the nature |
637 | and extent of the patient's mental illness. The facility shall |
638 | discharge a patient any time the patient no longer meets the |
639 | criteria for involuntary inpatient placement, unless the patient |
640 | has transferred to voluntary status. |
641 | (c) If at any time prior to the conclusion of the hearing |
642 | on involuntary inpatient placement it appears to the court that |
643 | the person does not meet the criteria for involuntary inpatient |
644 | placement under this section, but instead meets the criteria for |
645 | involuntary outpatient placement, the court may order the person |
646 | evaluated for involuntary outpatient placement pursuant to s. |
647 | 394.4655. The petition and hearing procedures set forth in s. |
648 | 394.4655 shall apply. If the person placement under this |
649 | chapter, but instead meets the criteria for involuntary |
650 | assessment, protective custody, or involuntary admission |
651 | pursuant to s. 397.675, then the court may order the person to |
652 | be admitted for involuntary assessment for a period of 5 days |
653 | pursuant to s. 397.6811. Thereafter, all proceedings shall be |
654 | governed by chapter 397. |
655 | (d) At the hearing on involuntary inpatient placement, the |
656 | court shall consider testimony and evidence regarding the |
657 | patient's competence to consent to treatment. If the court |
658 | finds that the patient is incompetent to consent to treatment, |
659 | it shall appoint a guardian advocate as provided in s. 394.4598. |
660 | (e) The administrator of the receiving facility shall |
661 | provide a copy of the court order and adequate documentation of |
662 | a patient's mental illness to the administrator of a treatment |
663 | facility whenever a patient is ordered for involuntary inpatient |
664 | placement, whether by civil or criminal court. Such |
665 | documentation shall include any advance directives made by the |
666 | patient, a psychiatric evaluation of the patient, and any |
667 | evaluations of the patient performed by a clinical psychologist |
668 | or a clinical social worker. The administrator of a treatment |
669 | facility may refuse admission to any patient directed to its |
670 | facilities on an involuntary basis, whether by civil or criminal |
671 | court order, who is not accompanied at the same time by adequate |
672 | orders and documentation. |
673 | (7) PROCEDURE FOR CONTINUED INVOLUNTARY INPATIENT |
674 | PLACEMENT.-- |
675 | (a) Hearings on petitions for continued involuntary |
676 | inpatient placement shall be administrative hearings and shall |
677 | be conducted in accordance with the provisions of s. 120.57(1), |
678 | except that any order entered by the hearing officer shall be |
679 | final and subject to judicial review in accordance with s. |
680 | 120.68. Orders concerning patients committed after successfully |
681 | pleading not guilty by reason of insanity shall be governed by |
682 | the provisions of s. 916.15. |
683 | (b) If the patient continues to meet the criteria for |
684 | involuntary inpatient placement, the administrator shall, prior |
685 | to the expiration of the period during which the treatment |
686 | facility is authorized to retain the patient, file a petition |
687 | requesting authorization for continued involuntary inpatient |
688 | placement. The request shall be accompanied by a statement from |
689 | the patient's physician or clinical psychologist justifying the |
690 | request, a brief description of the patient's treatment during |
691 | the time he or she was involuntarily placed, and an |
692 | individualized plan of continued treatment. Notice of the |
693 | hearing shall be provided as set forth in s. 394.4599. If at the |
694 | hearing the hearing officer finds that attendance at the hearing |
695 | is not consistent with the best interests of the patient, the |
696 | hearing officer may waive the presence of the patient from all |
697 | or any portion of the hearing, unless the patient, through |
698 | counsel, objects to the waiver of presence. The testimony in |
699 | the hearing must be under oath, and the proceedings must be |
700 | recorded. |
701 | (c) Unless the patient is otherwise represented or is |
702 | ineligible, he or she shall be represented at the hearing on the |
703 | petition for continued involuntary inpatient placement by the |
704 | public defender of the circuit in which the facility is located. |
705 | (d) If at a hearing it is shown that the patient continues |
706 | to meet the criteria for involuntary inpatient placement, the |
707 | administrative law judge shall sign the order for continued |
708 | involuntary inpatient placement for a period not to exceed 6 |
709 | months. The same procedure shall be repeated prior to the |
710 | expiration of each additional period the patient is retained. |
711 | (e) If continued involuntary inpatient placement is |
712 | necessary for a patient admitted while serving a criminal |
713 | sentence, but whose sentence is about to expire, or for a |
714 | patient involuntarily placed while a minor but who is about to |
715 | reach the age of 18, the administrator shall petition the |
716 | administrative law judge for an order authorizing continued |
717 | involuntary inpatient placement. |
718 | (f) If the patient has been previously found incompetent |
719 | to consent to treatment, the hearing officer shall consider |
720 | testimony and evidence regarding the patient's competence. If |
721 | the hearing officer finds evidence that the patient is now |
722 | competent to consent to treatment, the hearing officer may issue |
723 | a recommended order to the court that found the patient |
724 | incompetent to consent to treatment that the patient's |
725 | competence be restored and that any guardian advocate previously |
726 | appointed be discharged. |
727 | (8) RETURN OF PATIENTS.--When a patient at a treatment |
728 | facility leaves the facility without authorization, the |
729 | administrator may authorize a search for the patient and the |
730 | return of the patient to the facility. The administrator may |
731 | request the assistance of a law enforcement agency in the search |
732 | for and return of the patient. |
733 | Section 7. The Department of Children and Family Services |
734 | shall have rulemaking authority to implement the provisions of |
735 | sections 394.455, 394.4598, 394.4615, 394.463, 394.4655, and |
736 | 394.467, Florida Statutes, as amended or created by this act. |
737 | These rules shall be for the purpose of protecting the health, |
738 | safety, and well-being of persons examined, treated, or placed |
739 | under this act. |
740 | Section 8. If any provision of this act or the application |
741 | thereof to any person or circumstance is held invalid, the |
742 | invalidity does not affect other provisions or applications of |
743 | this act which can be given effect without the invalid provision |
744 | or application, and to this end the provisions of this act are |
745 | declared severable. |
746 | Section 9. This act shall take effect January 1, 2005. |
747 |
|
748 |
|
749 | ================= T I T L E A M E N D M E N T ================= |
750 | Remove the entire title and insert: |
751 | A bill to be entitled |
752 | An act relating to mental health; amending s. 394.455, |
753 | F.S.; defining and redefining terms used in part I of ch. |
754 | 394, F.S., "the Baker Act"; amending s. 394.4598, F.S., |
755 | relating to guardian advocates; amending provisions to |
756 | conform to changes made by the act; amending s. 394.4615, |
757 | F.S., relating to confidentiality of clinical records; |
758 | providing additional circumstances in which information |
759 | from a clinical record may be released; amending s. |
760 | 394.463, F.S.; revising criteria for an involuntary |
761 | examination; revising requirements for filing a petition |
762 | for involuntary placement; creating s. 394.4655, F.S.; |
763 | providing for involuntary outpatient placement; providing |
764 | criteria; providing procedures; providing for a voluntary |
765 | examination for outpatient placement; providing for a |
766 | petition for involuntary outpatient placement; requiring |
767 | the appointment of counsel; providing for a continuance of |
768 | hearing; providing procedures for the hearing on |
769 | involuntary outpatient placement; providing a procedure |
770 | for continued involuntary outpatient placement; amending |
771 | s. 394.467, F.S., relating to involuntary placement; |
772 | conforming terminology to changes made by the act; |
773 | providing for rulemaking authority; providing for |
774 | severability; providing an effective date. |